Is Treason Still Punishable in America Today?

Donald Trump Jr.’s actions might rise to the level of criminal conspiracy against the republic, but it probably wouldn't even matter.

ST LOUIS, MO - OCTOBER 09: Donald Trump, Jr. (R) greets his father Republican presidential nominee Donald Trump during the town hall debate at Washington University on October 9, 2016 in St Louis, Missouri. This is the second of three presidential debates scheduled prior to the November 8th election. (Photo by Rick Wilking-Pool/Getty Images)

There’s a word for what Donald Trump Jr. did when he met with an American adversary prepared to secretly help elect his father president in order to further its long-term goal of undermining American democracy — but it is not “treason.” Courts have consistently interpreted the Constitution’s treason clause as applying only to the commission of acts of war against the United States, or active cooperation with enemy states at war with the United States. Young Trump probably did not even commit a crime when, along with Jared Kushner and Paul Manafort, he met with someone he understood to be a “Russian government attorney” to hear “incriminating” information about Hillary Clinton.

The proper word for what these men did is “dishonor.” But I wonder if that archaic term, redolent of duels and ostracism, holds any weight at all today. I wonder, that is, if we still share a collective sense of patriotic obligation that could lead even President Donald Trump’s supporters to agree that what his campaign did last June is intolerable in America’s democracy. I think the answer is no.

First, let’s not be naïve: This is not the first time American politicians have collaborated with the country’s rivals to further their own ambitions. George Washington was so concerned about the endless conniving between the anti-Federalist faction and the revolutionary French regime, and to a lesser extent between the Anglophile Federalists and English agents, that he used his Farewell Address to admonish citizens against “passionate attachments” to “particular nations.”

But the most striking examples are much closer to our own time. A recent biography of Richard Nixon has strongly confirmed the long-standing rumor that he used an intermediary to secretly implore the government of South Vietnam to resist President Lyndon Johnson’s efforts to end the war, thus prolonging the killing in order to win the presidency. A more circumstantial case ties candidate Ronald Reagan to efforts by William Casey, later Reagan’s CIA chief, to persuade Iranian leaders to hold off releasing American hostages until after the 1980 election.

This is the category to which the Trump campaign’s shenanigans with Russia belong. They bear more resemblance to the Reagan than to the Nixon allegations, since the Trump campaign was collaborating with an enemy, not an ally. But while Casey is only alleged to have held three meetings with Iranian officials, the clandestine meetings and phone calls between Trump advisors and Russian proxies and diplomats seem to be much more prolonged — lasting at least from June 2016 through the inauguration in January.

But what makes the Trump campaign’s behavior far more dangerous, and therefore more reprehensible, than anything Reagan and Casey are alleged to have done, is that Russia in 2016 — unlike Iran in 1980 — was able to do real harm to the liberal order of the West and was actively seeking to do so, for example by trying to destabilize the democracies of Eastern Europe. The Iranian hostages were coming home one way or another. By contrast, the June 6 email chain put the Trump team on notice that Russian President Vladimir Putin was attempting to meddle in the presidential election on behalf of Trump. The transaction was closer to Nixon’s: Gain the presidency, harm the republic. Patriotism is the willingness to place nation before self. We have no word for the opposite, but “dishonor” will do well enough.

I don’t doubt that Nixon, then already known as “Tricky Dick,” would have been ruined had the truth come out before the election. Reagan, with his iron-clad patriotic bona fides, might have survived such a revelation. But Americans, including Republicans, would have been shocked to learn the cynical willingness to place self before nation. In Trump’s case, however, there may be nothing — no moral judgment — in between a criminal indictment and a collective shrug. He didn’t commit a crime; case closed. The very idea of honor may be an archaism. Even an indictment might only fire the resentment of Trump’s base at everyone and everything that stands in the way of their tribune. It will confirm their darkest suspicions, which Trump of course has eagerly stoked.

Donald Trump Jr.’s exultant “I love it!” at the news that Moscow wanted to help destroy Hillary Clinton is sickening only if one views Russian designs as a real danger to the United States. Before the Trump campaign, that seemed to be one of the few consensual points in American politics. Trump’s open advocacy of Putin during the campaign thus looked like suicide. But it wasn’t. And the reason it wasn’t is because many of the people who voted for Trump believe that “the enemy” is not a foreign country but the enemy within — elites, liberals, secularists. The Deep State. And let’s face it: For those elite liberal secularists, Trump and his nationalist camp constitute as a grave a threat to what they hold dear as does Putin. There are no, or few, “national interests” threatened by outside forces, just rival camps pitted in a life-and-death struggle.

Patriotism operates as a truly binding force only in the face of an external danger — i.e., war. At moments of profound national division, where no consensus exists on the interests of the nation, patriotism is the cant that rival parties hurl at one another. One looks in vain for the place that stands above and beyond partisanship. That is why I wrote last month that I hoped against hope that James Comey’s Senate testimony might remind Americans of the vanished virtue of principled neutrality. His insistence on serving the Constitution rather than “a patron” assumes a collective good; “I love it!” assumes that people who think so are idiots.

Earlier this week, I was invited to speak at a ceremony in Quincy, Mass., celebrating the 250th anniversary of the birth of John Quincy Adams. My subject was patriotism. Adams, I said, viewed the sacrifice of personal interest for national good not as an obligation to be shouldered but as a kind of romance. Patriotic sacrifice offered sacred communion with his heroes — Cicero, George Washington, his own father. Even his contemporaries considered Adams faintly daft, a doddering relic of an age when America had not yet been divided by region and party. Adams knew very well that the world of his boyhood, when Americans stood together against the common enemy of Great Britain, had passed into history; but he continued to behave as if it could be willed back into existence. He died, no longer ridiculed but revered, because he had lived for an idea of the republic that the American people found that they still very much cherished.

Adams took it for granted that he could speak and act for an “us” — for a collective sense of national good. Patriotic sacrifice requires that implicit us. So does the word “dishonor,” because only shared values can be dishonored. The drama at whose lip we now stand will teach us whether, as Americans, we still share anything precious. I fear for the answer.

Photo credit: RICK WILKING/Getty Images

About the Author

James Traub is a contributing editor at Foreign Policy, a fellow at the Center on International Cooperation, and author of the book "John Quincy Adams: Militant Spirit."

James Traub is a contributing editor at Foreign Policy, a fellow at the Center on International Cooperation, and author of the book "John Quincy Adams: Militant Spirit."